Indra Williams v Casepak Company (Grenada) Ltd (Trading as Calabash Hotel)

• Jurisdiction: Grenada
• Judge: Dyer, J.
• Judgment Date: 30 May 2018
• Judgment citation (vLex): [2018] ECSC J0530-3
• Court: High Court (Grenada)
• Docket Number: CLAIM NO. GDAHCV 2017/0463
• Date: 30 May 2018

[2018] ECSC J0530-3

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

IN THE HIGH COURT OF JUSTICE

CLAIM NO. GDAHCV 2017/0463

Between:

Indra Williams

Claimant

and

Casepak Company (Grenada) Ltd. (Trading as Calabash Hotel)

Defendant

Appearances:

Mr. Ruggles Ferguson of Ciboney Chambers of Counsel for the Claimant

Ms. Skeeta Chitan of Mitchell & Co. of Counsel for the Defendant

The Claimant and the Defendant's representative Mr. Russell Antoine being present.

Civil Procedure — Striking out of part of claim — No reasonable ground for action — Whether defective pleadings curable — Part 26-3 of CPR 2000 — Employment Law — Unfair Dismissal — Right of access to the High Court — Whether an employee can initiate an unfair dismissal claim for damages in the High Court — Part 9.7 of CPR 2000 — Disputing court's jurisdiction

1 Dyer , J. (Ag): By an application dated 12 ^th December 2017 the Defendant applied to the Court for: (i) a declaration that this Court does not have jurisdiction to try the Claimant's unfair dismissal claim; (ii) an order that the Claimant's wrongful dismissal claim fails to meet the requirements of a wrongful dismissal claim in law; and (iii) an order striking out the entire claim at bar; and (iv) costs. The Defendant's application was made pursuant to Rules 9.7 and 26.3 of the Civil Procedure Rules 2000 (“ CPR 2000”). This application was opposed by the Claimant who filed a Notice and Submissions in Opposition on the 12 ^th January 2018 and 9 ^th February 2018 respectively. The application at bar came on for hearing on the 25 ^th May 2018.

2 A brief background to the case as gleaned from the pleadings will present a helpful perspective from which to consider the application at bar. It is the Claimant's case that on 11 ^th October 2014 after the Claimant had been employed with the Defendant for approximately 25 years, the Defendant summarily dismissed her. At the time of the Claimant's dismissal she was a member of the Grenada Technical and Allied Workers Union (“GTAWU”). It appears that she had joined the GTAWU because she was aggrieved by the Defendant's decision in November 2013 to reschedule her to do shift work. Upon joining GTAWU she apparently requested that it negotiate with the Defendant on her behalf. The negotiations were apparently unsuccessful and the Claimant was put on shift work. The Claimant was shortly thereafter presented with a document titled duty of confidentiality which she was asked to sign by a certain deadline. She did not sign the document within the time limited by the Defendant. She sought the advice of the GTAWU on the matter. The GTAWU intervened. The Defendant subsequently issued various letters to the Claimant complaining about her performance. The Defendant by way of letter dated 10 ^th October 2014, but delivered on the following day, informed the Claimant that she was being immediately dismissed. The Claimant was only paid following her termination for the days on which she actually worked.

3 The Claimant was dissatisfied with this and made a complaint to the Labour Commissioner who after hearing both sides recommended that the Defendant pay the Claimant severance pay. The Defendant rejected this recommendation. The dispute was referred to the Minister of Labour. The Minister it seems proposed the same compromise as the Labour Commissioner which the Claimant was seemingly prepared to accept but the Defendant rejected.

4 There is a dispute between the parties as to what happened next. It will later become apparent that, as Ms. Chitan submits, nothing turns on this. The Claimant avers that the Minister invited the parties to agree on the establishment of an Arbitration Tribunal. The invitation was verbal and not in writing. The Claimant maintains that this invitation was rejected by the Defendant who, through its counsel, by letter dated 7 ^th November 2017 confirmed its rejection of the Minister's invitation.

5 The Defendant denies this. The Defendant avers that the said letter did not communicate any decision by it to either participate or not participate in the setting up of the Arbitration Tribunal. The Defendant says that the letter simply underscored its right of refusal which was in no way being exercised. The Defendant's letter was in response to a letter from the Claimant's counsel dated 31 ^st October 2017 requesting that the Defendant indicate whether it was amenable to paying certain sums in full and final settlement of the matter. The sums included the sum of $114,787.75 which had been recommended by the Labour Commissioner and the Minister as severance pay. The Defendant was not minded to do so. It took the position that the Labour Commissioner and the Minister are not empowered to make any ruling regarding the matter unless they were invited to do so by the parties. The Defendant had not invited either the Labour Commissioner or the Minister to make any such ruling. It was as such entitled to disagree with the recommendations of both offices.

6 On 9 ^th November 2017 the Claimant commenced proceedings before this Court challenging her dismissal on the ground that it was in breach of her contract of employment and unreasonable and that it amounts to wrongful dismissal under the common law and to an unfair dismissal within the meaning of section 70 of the Employment Act, Cap 89 of the 2010 Edition of the Continuous Revised Laws of Grenada. The Claimant seeks inter alia damages for unfair dismissal.

7 The Defendant acknowledged service on the 27 ^th November 2017. On the 12 ^th December 2017 the Defendant applied:-

• (i) pursuant to Rule 9.7 of the CPR 2000 for a declaration that this Court lacks jurisdiction to hear the Claimant's unfair dismissal claim on the ground that section 82 of the Employment Act 1999 specifically sets out the procedure and mechanisms for determining complaints of unfair dismissal. The Defendant avers that the Claimant is required to prosecute her claim for unfair dismissal in accordance with the legislative dictates in section 82 of the Employment Act and is not entitled to seek redress from the High Court unless upon an application for judicial review or appeal of the decision of the Arbitration Tribunal. There is no such ruling of the Arbitration Tribunal capable of being reviewed by this Court, which is the only jurisdiction this Court has in unfair dismissal claims in Grenada;

• (ii) pursuant to Rule 26.3 of the CPR 2000 to strike out the wrongful dismissal claim on the basis that it is unmaintainable as it fails to disclose any reasonable grounds for bringing the wrongful dismissal claim. The Defendant avers that the Claimant has failed to plead the particulars of her employment contract and has failed to plead the particulars of its breach(es) which are necessary to establish a wrongful dismissal action.

8 Having filed its Notice of Application to strike out, the Defendant did not file any defence to this action. 1

The Pleading Point — Whether striking out of the Claimant's wrongful dismissal claim is appropriate

9 This Court is empowered by Rule 26.3 of CPR 2000 to strike out a statement of case or part of a statement of case if it appears that it does not on its face disclose a sustainable claim. In Jannis Reynold-Greene v. The Bank of Nova Scotia et al Claim No. ANUHCV 2005 0488/0489 Blenman J (as she then was) held that the “ no reasonable ground for cause of action” addresses two situations:-

• (1) where the content of the statement of case is defective in that, even if every allegation contains in it were proved, the party whose statement of case it is cannot succeed; or

• (2) where the statement of case, no matter how complete and apparently correct, it may well fail as a matter of law.

The cases establish that striking out is a draconian step which should only be applied in sparingly limited, plain and obvious cases where there is no point in having a trial. Indeed, in Global Torch Ltd v. Apex Global Management (No. 2) [2013] EWHC 2818 (Ch) Norris J said “ striking out of a statement of case is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified.” A court is slow to drive persons from the seat of justice and as such usually errs in favour of having cases tried on their merits. The Court's power is thus regarded as restricted to cases which are bad in law or which fail to plead a complete claim.

10 The Defendant in this case does not assert that the wrongful dismissal claim is bad in law. It essentially avers that the Claimant has failed to properly particularize same. The strikeout application at bar is thus based on the first limb of Blenman J's proposition. It is therefore necessary to look closely at the statement of claim. Having reviewed same, I see force in the Defendant's criticism that the Claimant's wrongful dismissal claim is lacking with regard to the particulars of the alleged breach of contract. Firstly, the pleadings do not say which term of the contract has been allegedly breached. Secondly, whilst the Claimant takes issue with her “immediate dismissal” no contractual period of notice is pleaded by the Claimant. The absence of such material details in my view makes the pleading defective. In Robert Conrich (a.k.a Bob Conrich) v Ann Van Der Est AXAHCV 0002/2001, Rawlins J (as he then was) stated that it is only where a statement of case does not amount to a viable claim or is beyond cure that the Court may strike it out. The question which arises is whether such defects are beyond cure.

11 The Claimant being faced with the strikeout application at bar did not seek to stave same off by applying for leave to amend to cure the defects in her pleading. She filed a Notice of Opposition wherein she essentially argued that she was summarily dismissed and there was no cause to justify such dismissal. The Claimant...